The government is responsible for loss and damage due to negligence of any Telegraph Officer, and the Consumer Protection Act, 1986 is an independent statute.

Mr. Subash Mahtab, Member—This appeal arises out of order dated 10.1.2002 passed in C.D. Case No. 13 of 1999 by the District Consumer Disputes Redressal Forum, Khurda, Bhubaneswar, wherein the appellants have been directed to pay jointly and severally a sum of Rs. 1,000 along with cost of Rs. 500 to the complainant, within 30 days from the date of receipt of the order. Being aggrieved with the said order, the appellants have preferred the present appeal.

2. The allegation of the complainant was that he had sent an Express Reply paid Telegram from Bhubaneswar to one of his relative Sri N. Barik who was residing at Burdhwan (West Bengal) on 12.5.1998 communicating an important message that “Panchami left Bhubneswar on eighth instant without anybody’s knowledge confirm her arrival”. But as ill luck would have it, he did not receive any message of arrival of Panchami till 26.5.1998 though it was a reply paid telegram. Then he proceeded to Burdhwan on 27.5.1998 and there he found that the telegram did not reach the destination. Then he made complaint before the appellants and requested them to pay him compensation for their deficiency in service. He received reply from the appellants that the matter is under investigation. After receiving the Lawyer Notice from the complainant the appellants replied the complainant that the telegram was transmitted from Calcutta to Suri, but it was not received at Suri. They admitted that the telegram was lost in between Calcutta to Suri. Being unable to get compensation, the complainant filed the dispute case before the Forum below claiming compensation and cost from the appellants. In the Forum below the appellants took the plea that the telegram was sent from Calcutta to Suri, but it was lost in between due to technical fault, for which it could not reach the destination. According to them, the complainant may get refund of the booking cost of the telegram, but he is not entitled to any compensation in view of the provision in Rule 9 of the Indian Telegram Act and Rules and the terms and conditions of the telegram.

3. The District Forum after considering the contentions of the parties and after perusing all the materials on record has observed that the appellants has not filed any documentary evidence to show that the loss of the telegram was due to technical fault. Their letter under Annexure-L of the complaint petition also does not support his plea. This is a case of reply paid telegram and the complainant was not intimated about the loss of telegram. So, the District Forum held that this is a clear case of deficiency of service due to negligence of the appellant. Having hold this, the District Forum has awarded Rs. 1,000 to the complainant along with a cost of Rs. 500.

4. Heard Mr. P.N. Mohapatra, the learned Counsel for the appellants and Mr. A.K. Samal, Advocate for the respondent. Mr. Mohapatra has strenuously argued on behalf of the appellants and cited a number of decisions. Mr. Samal also cited several judgments in support of his case. We did not appreciate the contention of the appellant that as the telegram facility if provided under the provisions of the Indian Telegram Act and Rules in exercise of sovereigns function of the Government of India, there is no question of hiring of service by the complainant and that the Government is not responsible for loss and damage which may occur due to negligence of any Telegraph Officer failing in duty with respect of receipt, transmission or delivery of any message and no such officer shall be responsible for any such loss or damage unless, he causes the same negligently, maliciously and fraudulently.

5. Similar question arose for consideration in Junior Telecom Officer (TD) v. A.B.P. Rao, in C.D. Appeal No. 681 of 2003, order dated 25.4.2005 , III (2005) CPJ 708=100 (2005) CON.LT 25 (CDC), passed by this Commission as to whether transmission of message by means of telegram can be held to be in course of exercise of sovereign functions so tha